NAMDEO GANUJI MARATHE Vs. GANGADHAR GOVIND JOSHI

JUDGEMENT

(1.) THIS second appeal raises a somewhat difficult question as to the interpretation of Section 183 of the Berar Land Revenue Code and to what extent it is affected by the provisions of Section 13 of the Central Provinces and Berar Relief of Indebtedness Act, (XIV of 1939). So far as we have been able to ascertain, the question is not covered by authority and it is for this reason that my learned brother Badkas J. referred the appeal for decision by a Division Bench.

(2.) THE facts in the case are not seriously in dispute. Respondent No. 2 Kisan and one Dhondu owned field No. 152/4.' On April 17, 1937, both these persons mortgaged the field, survey No. 152/4, along with two other fields to respondent No. 1 Gangadhar. It is not in dispute and was admitted before us on behalf of both the parties that of the total land thus mortgaged survey No. 152/4 which is the subject -matter of the present suit for pre -emption forms roughly half the land.

(3.) THE mortgage dated April 17, 1937, was a mortgage with a condition of foreclosure. It was a mortgage for a sum of Rs. 200 with interest at Re. 1 -8 -0 per cent, per mensem. It appears that the debtors had not made any repayments in satisfaction of the mortgage debt till 1941 in which year one of the mortgagors viz. Kisan, respondent No. 2, applied to the Debt Relief Court which was then established, for relief in respect of the mortgage debt. The Debt Relief Court accordingly framed a scheme which is exh. D -1. By that scheme which settled debts due to other creditors also, the amount of the mortgage debt was cut down to Rs. 269 -5 -0 so far as the creditor Gangadhar was concerned, and that amount was made payable in nine instalments of Rs. 28 each commencing from March 1, 1942, and the 10th and the last instalment was Rs. 17 -5 -0. The scheme then declared that 'the amount payable to the N.A. 1 (Gangadhar) is due under the mortgage by the conditional sale dated 17 -4 -1937.' Even under the scheme, the debtors failed to pay the instalments as ordered. They had paid the first seven instalments but failed to pay the last three instalments. Thus they had paid Rs. 196 and had failed topay Rs. 73 -5 -0. The creditor Gangadhar, therefore, applied for the issue of a certificate under Section 13(3) of the Relief of Indebtedness Act and a certificate was granted on May 15, 1951, which was in the following terms: